Jones v. Eley

¶1delivered the opinion of the Court.

¶2In this paternity suit, the trial court found by clear and convincing evidence that Sheila A. Eley and Nathan A. Eley (the Eleys), who were bom out of wedlock, are the biological children of Bobby Julius Jones, deceased. The principal issue in this appeal is whether the evidence supports that finding.

¶3I

¶4On June 15, 1995, the Eleys filed a petition, pursuant to Code § 64.1-5.1, to establish that Bobby Julius Jones, who died February 24, 1995, was their biological father. Daniel Jones, Charles C. Jones, and David L. Jones, co-administrators of Bobby Jones’ estate (the *200co-administrators), contested the paternity claim. The co-administrators are Bobby Jones’ brothers and claim to be his sole heirs at law.1

¶5On May 30, 1997, the trial court conducted an ore terms hearing. On June 19, 1997, the court entered a final order, finding by clear and convincing evidence that the Eleys are the biological children and, therefore, the legal heirs at law of Bobby Jones. The co-administrators appeal.

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¶7The Eleys prevailed at trial; therefore, pursuant to a well-established principle of law, they are entitled to have the evidence and all reasonable inferences deducible therefrom viewed in the light most favorable to them.

¶8In 1957, Alice Eley and Bobby Jones began dating each other. Although they never married, they continued to maintain a close relationship. Bobby and Alice lived together continuously during the seven years preceding Bobby’s death.

¶9Alice Eley is the biological mother of Sheila Eley, bom in November 1958, and Nathan Eley, bom in December 1960. Alice testified that Bobby was the children’s biological father.2

¶10According to Alice, Bobby assumed financial responsibility for the Eleys until they became adults. Bobby gave Alice money “every week” for their support, and he provided extra money when needed. Bobby also sat for a “family portrait,” and he and Alice took pictures “throughout the lifetimes with the kids.”

¶11Bobby acknowledged to a number of family members and friends that the Eleys were his children. During his last illness and shortly before his death, Bobby acknowledged to his attending physician that the Eleys were his children, and the physician testified that Nathan was Bobby’s “spitting image.”

¶12The Eleys testified that their relationship with Bobby was that of parent and children. They recounted how Bobby often would “pick [them] up” and take them to various places such as parks and movie theaters. On several occasions, Bobby took them to Jones family reunions and gatherings in North Carolina. Bobby bought them clothes, and he “always” took Nathan to the barbershop. He often *201attended high school and college basketball games in which Nathan participated. After Sheila had children, Bobby had a close relationship with his grandchildren, whom he affectionately referred to as his “grandboys.”

¶13On December 13, 1974, Bobby signed an insurance beneficiary designation form on which he stated that Sheila Eley was his daughter and Nathan Eley was his son. Sheila received $12,000 as the named beneficiary of Bobby’s certificate of deposit with his employer’s credit union. She also received insurance proceeds of approximately $25,000 as the named beneficiary of Bobby’s life insurance policies. Bobby named Nathan the beneficiary of approximately 160 bonds having a value “well over $10,000.”

¶14When Bobby died, the Eleys, along with Daniel Jones, made the funeral arrangements. Sheila had Bobby’s mail forwarded to her home so she could pay his outstanding debts. The Eleys paid Bobby’s hospital bill, doctor bills, funeral and burial expenses, and property tax.

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¶16Great deference is accorded a trial court’s factual findings. This is so because the judge, as fact finder, sees and hears the witnesses and, therefore, is better able to determine their credibility and weigh their testimony. Tuomala v. Regent University, 252 Va. 368, 375, 477 S.E.2d 501, 505-06 (1996). Consequently, a trial court’s factual findings will not be disturbed on appeal unless they are plainly wrong or without evidence to support them. Code § 8.01-680; Tauber v. Commonwealth, 255 Va. 445, 452, 499 S.E.2d 839, 843 (1998).

¶17Code § 64.1-5.2 provides that “evidence that a man is the father of a child bom out of wedlock shall be clear and convincing.” The section also provides that the evidence “may include, but shall not be limited to” eight enumerated items.3

¶18*202The co-administrators contend that the evidence is insufficient to prove that Bobby was the biological father of the Eleys because none of the eight items set forth in Code § 64.1-5.2 were proved. While it is true that none of the eight items were proved, the statute, as previously noted, expressly provides that the evidence relating to paternity “shall not be limited to” those items. Therefore, we must examine the evidence that the trial court did consider in finding that Bobby was the Eleys’ biological father.

¶19The evidence shows that Bobby acknowledged his paternity to a number of people, one of whom was his treating physician during his last illness. This disinterested witness testified not only that Bobby acknowledged to him that the Eleys were his children, but also that Nathan Eley was Bobby’s “spitting image.”

¶20The evidence also reveals that Bobby’s interaction with the Eleys was indicative of a father and children relationship. When the Eleys were young, Bobby would take them to various places for recreation and entertainment. Bobby sat for family photographs with Alice and the Eleys, and he took the Eleys to Jones family reunions and gatherings.

¶21According to Alice, Bobby always contributed to the support and maintenance of the Eleys until they reached adulthood. Bobby named the Eleys as beneficiaries of life insurance policies, a certificate of deposit, and bonds. Most significantly, Bobby completed and signed an insurance beneficiary designation form on which he stated that Nathan Eley was his son and Sheila Eley was his daughter.

¶22The co-administrators also assert that the evidence is insufficient to prove paternity because Alice never testified that she had had sexual intercourse with Bobby. We are unpersuaded by this assertion. Alice did testify that she and Bobby began “dating” in August 1957, that they dated continuously thereafter, and that Bobby was the Eleys’ father.

¶23*203Finally, the co-administrators contend that the evidence should fail because, on one occasion, Alice unsuccessfully petitioned a juvenile and domestic relations district court to order Bobby to pay support for the Eleys. To support this contention, the co-administrators look to Code § 64.1-5.1(3)(b) which states that a person bom out of wedlock is the child of a man if the paternity is established by clear and convincing evidence; “provided, however, that the paternity establishment. . . shall be ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his and has not refused to support the child.” The co-administrators assert that “it is apparent that Bobby Jones was refusing to support the children when he went to court and the child support case was dismissed.” We do not agree.

¶24The record is silent with respect to the basis for the dismissal of the petition. Alice testified, however, that, although Bobby always supported the Eleys, she “took him to court ... to get more money because [she] didn’t feel that [Bobby] was giving [her] enough at that particular time.” Viewing, as we must, the evidence and all reasonable inferences in the light most favorable to the Eleys, we do not think the record supports the contention that Bobby ever refused to support them.

¶25Moreover, we think the co-administrators’ reliance upon the quoted clause in Code § 64.1-5.1(3)(b) is misplaced. The clause deals with the right of a father or his kindred to inherit from or through a child bom out of wedlock, not with the establishment of paternity.

¶26IV

¶27We recognize, as the co-administrators state, that the General Assembly, in enacting Code § 64.1-5.1, has placed a heavy burden on people who undertake to prove that they are the paternal children of a decedent. It is apparent from the record, however, that the trial court was fully cognizant of that burden. Nevertheless, the court found by clear and convincing evidence that Bobby Jones was the Eleys’ biological father. Giving that finding the deference to which it is entitled, we conclude that the finding is fully supported by the evidence. Accordingly, the trial court’s judgment will be affirmed.4

¶28Affirmed.